The Sentencing Hearings of Andre Denny: Casting a Queer Eye. Part II

Posted by Wayves volunteer 16/03/2016

By Hugo Dann

Background:This is the second in a series of articles dealing with the sentencing of Andre Denny for the homicide of Raymond Taavel. Part I dealt with the Crown and Defence lawyers arguing over some of the evidence; the presentation of a security video from Menz Bar, and the reading into evidence of victim impact statements, including a YouTube video played at Raymond’s memorial service. You can read Part I here.

Intention: For those who may not have read Part I, I’d like to reiterate that this is not an attempt at objective reporting, it would be impossible for me to be an impartial observer of these proceedings. Raymond Taavel was both a friend and an inspiration.

For anyone wishing to read a mainstream media account of the hearing, you can’t do better than the report from CBC’s Blair Rhodes. It includes his twitter posts live from the Court. In writing this account, I have frequently turned to his coverage to verify my experience of that day, for which I’m grateful to Mr. Rhodes. We are fortunate that CBC can still provide Nova Scotians with reliable information on a daily basis. You can find Mr. Rhodes’ story here. Trigger warning: Be advised that the details are at times graphic and disturbing.

In attending this hearing I hope to bear witness to my friend, and also to observe how a criminal court responds to a case like this, with intertwining issues of the LGBTQ community, indigenous peoples, and people with mental health issues, and the violence afflicting all of us, as marginalized peoples.

The issue at stake in this hearing is the kind of sentence Mr. Denny will receive from the Court. In November 2015 he pleaded guilty to a reduced charge of manslaughter. The Crown would like to see him serve a longer sentence, while the defence hope that Mr. Denny’s mental health will allow for a shorter sentence, including time already served, and that his mental health and other issues will serve as mitigating factors in the judge’s sentencing decision.

Homophobia and the East Coast Forensic Hospital

I haven’t yet read the experts’ reports, so I have no idea if subliminal or unconscious homophobia was mentioned by any of the psychiatrists as possibly influencinging the violence of Mr. Denny’s assault. Certainly, there was no mention of homophobia during the entire hearing.

Perhaps even more disturbing, the only oblique mention of the role played by the East Coast Forensic Hospital came in Darren Lewis’s victim impact statement: “Because of a chain of events that never should have been able to happen, Raymond was beaten to death by Andre Denny.” As I noted in part one, there does not seem to be any representative of the hospital present. There isn't even a mention of the apology offered by the government to the Taavel family.

It may be that homophobia could only be introduced if the offense were classified as a “hate crime” (that useless legalism), and there are perhaps other legal reasons for not citing the hospital. Otherwise I can only assume that there was no material advantage, either to the Crown or the Defence in raising these issues in their arguments. For me, these two unmentionables loom like silent, monstrous elephants over the entire proceedings.

The Lawyers

Part I concluded with the reading into evidence of the victim impact statement from Darren Lewis, Raymond’s partner, which for me was the most harrowing part of the morning, but also the most affirming in its portrayal of the enduring love and deep friendship which Darren and Raymond shared for a decade.

The reading of the victim impact statements concludes the introduction of the evidence. The hearing now focuses on the arguments of the two legal teams, first the Crown and then the Defence. Other than recording their names, I haven’t yet described the lawyers in any detail.

James Giacomantonio and Mark Heerema, co-counsels for Her Majesty the Queen are young men, possibly in their early 30s. Both are handsome; Mr. Giacomantonio somewahat scruffily so; Mr. Heerema all sharp cheekbones and close cropped hair. Mr. Giacomantonio was brought to the case after the original Crown Attorney retired from practice. He took the lead in presenting the evidence to the Court. Mr. Heerema will present the Crown’s argument.

On the opposite bench, Andre Denny’s defence team is made up of Constance MacIsaac and David Mahoney. Ms. MacIsaac consults with her colleague at times, but the presentation is handled by Mr. Mahoney. Similar to his opposite, Mr. Mahoney was not Mr. Denny’s first Fefence counsel. He joined the case after Mr. Denny twice fired his previous lawyers. While handsome, David Mahoney seems more of an everyman, someone who might escape notice in a crowd. He is perhaps a bit older than his Crown counterparts, but he has a subdued intensity, as if he were holding himself in check. When first I saw him, I mistook this for nervousness. All the attorneys are in their black gowns.

Following the eerie intensity of the security video from Menz Bar, the deep sorrow of the victim impact statements, and the replay of the video from Raymond’s memorial service, we’re moving now into the drier rhetoric of the professional lawmen. There are no dramatic interruptions or objections. Each side knows the other’s argument and attempts to circumvent it. There’s a whiff of testosterone in the the room; this a contest between men, and its outcome is the fate of Andre Denny. They speak in turns: first the Crown, then the Defence.

The Crown

The Agreed Statement of Facts has already been submitted as evidence. (you can read our edited version here). The Crown will argue for a sentence of seven to ten years; the defence for one of five to seven years, including time already served while Mr. Denny has been awaiting trial (he's been held at the East Coast Forensic Hospital for almost four years now).

Mark Heerema rises to offer a quick summary of the prosecution’s arguments. It’s now well past noon and he asks if the Judge would like to break for lunch. Justice Rosinski, however, is keen to proceed.

Mr. Heerema goes through the chronology of events. He tells us that Raymond and Mr. Denny had never met before that night. He relates that Raymond intervened to protect his friend who was being threatened by Mr. Denny, and how Mr. Denny then turned on him. He describes in grim detail the blows delivered to Raymond and the injuries he sustained. Calling the crime a "vicious, gratuitous beating that was senseless and unprovoked,” with rhetorical flourish he says, “Mr. Taavel was in the path of a storm that night.”

As he proceeds, it becomes clear why the Crown wanted to play the entirety of the Menz Bar video. “Mr. Taavel went from dancing to dying in the space of a few minutes,” he tells the Court.

It’s now around 1:30 p.m. and the Court breaks for lunch. I wander the downtown aimlessly for awhile, trying to enjoy the sunshine, but still feeling a bit numb from the emotional tension of the morning. I grab a quick sandwhich and head back to Court for 2:30. Another 10 minutes pass and the Sheriffs bring in Mr. Denny. A few minutes later Justice Rosinski enters. We all rise and the Court is in session. The queer contingent has shrunk by a third. My friend Patrick Daigle. who'd been sitting with Darren Lewis and I has had to return to his office. It's just Darren and I now, and we'veve moved seats. We’re now behind the Crown’s table, where I sat when I first arrived. I can attest that the public benches are tortuous on both sides of the Court.

Force and Mental Illness

Mr. Heerema is again on his feet making the Crown’s case. Referencing the Agreed Statement of Facts, he allows that while Raymond’s own inebriation and pre-existing heart condition were factors, nevertheless “blunt force trauma” was the principle cause of death. Referencing the Brief submitted by the defence, he notes that Mr. Mahoney will try to minimize the force of the attack.

Mr Heerema presents manslaughter as a criminal charge of great latitude, one that ranges from near-accidental death to something more akin to murder. It's in that spectrum where the Crown places Mr. Denny’s action.

He goes on to suggest that, having already invoked Mr. Denny’s mental illness in order to plead down from murder to the lesser charge of manslaughter, the Defence cannot reintroduce his mental health as a mitigating factor in sentencing. He actually calls it “double-dipping.” I am no lawyer, but his line of argument completely baffles me. If Andre Denny's mental illness was accepted as part of his plea, how can it not apply to his sentencing now?

Justice Rosinski questions this as well. He notes that one of the psychiatric experts didn’t feel that Andre Denny could access rational thought processes when he attacked Raymond.

Mr Heerema answers that the experts did not arrive at a consensus of finding Mr. Denny not criminally responsible in this case. The Crown rejects the defence assertion that Mr. Denny used minimal force. “There can be nothing nearly accidental about nine blows to the head.”

Mr. Heerema asks for a sentence of seven to ten years, a lifetime weapons ban, and a DNA sample.

The Defence

Mr. Mahoney now rises for the defence. He begins by saying that we’ve heard a lot about Mr. Taavel, and that part of his job is to let us know something of Andre Denny. He then puzzles me by suggesting that the unexpected death of anyone is tragic, Raymond’s no more than anyone else’s. This seems to me a bizarre argument, given the demonstrable impact of Raymond’s death that the Court has already seen. If his goal is to raise sympathy for Mr. Denny, it’s hard to see how this helps. I can’t deny it puts me off.

Justice Rosinski challenges him, noting that Raymond’s death affected a lot of people. “It cast a pretty long shadow.”

Mr. Mahoney begins to address the core issues in his argument. He acknowledges that the previous judgment on Mr. Denny of not criminally responsible in a prior case can’t factor in sentencing here. Nor will he use Andre Denny’s drug and alcohol use on the night of the assault on Raymond as a mitigating factor, instead he will argue that Mr Denny was impaired by psychosis, that he was “actively psychotic.”

Again Justice Rosinski questions him. Given that Mr. Denny was receiving treatment at the time of the assault, shouldn’t he have known that drinking and cocaine use would end badly for him?

Mr. Mohoney notes. “The amount of evidence linking Mr. Denny’s mental illness is everywhere.” Mental illness lessens the moral blameworthiness of the offender; it should be a mitigating factor in sentencing. He proceeds to cite supporting precedents in case law.

Whereas as the Crown used hypothetical cases and a few existing precedents in their argument, Mr. Mahoney cites numerous cases to support nearly all of his assertions.

Mr. Mahoney moves on to the assult itself. As the crown had indicated, he does indeed suggest that Mr. Denny did not use full force in the attack. He points out that Mr. Denny is a big man. If he’d intended to do real harm, he could have used much more force.

Mr Denny didn’t use a weapon, he states. Again Justice Rosinski intervenes, “You may want to consider a boot a weapon when you kick someone in the head.” In my mind I can't help but think, “and the pavement.”

Mr Mahoney reiterates that Raymond’s injuries were not the sole factor in his death; in addition to his existing heart problem, he was drinking and high. For me this coming very close to victim blaming. Both Crown and Defence arguments have significantly raised my hackles, but that’s the flawed nature of our adversarial system.

The Judge does point out that had it not been for Mr. Denny’s actions Raymond would not have died. Mr. Mahoney counters that there was no deliberation or forethought on Mr. Denny’s part, he had no intent to kill Raymond Taavel. “This is not a case of near murder,” he says.

The Defence draws the Judge’s attention to the Gladue Principle in sentencing First Nations peoples. These are recomendations to redress colonialism in the Canada's Justice system.

Justice Rosinski notes the importance of these guidelines, but wonders if Mr. Denny’s mental health issues don’t take precedence; if that was not the issue that brought him into conflict with the law, rather than his First Nations status.

Mr. Mahoney quickly points out the disparity of mental health care available to a young man growing up in South End Halifax and a young Mi’kmaw man growing up on a reserve in Cape Breton.

He does tell the Court more about Mr. Denny: how he was a happy child, active as a pow wow dancer, and keen to learn the traditions and culture of his community. His mental health problems began to manifest after he was in a car accident. He became increasingly unpredictable and began exhibiting bizarre and even aggressive behaviour.

Mr. Denny has assured authorities that he intends to continue taking his medication and will work with a psychiatrist to get his life back on track.

Defence Counsel introduces case law to support a five to seven year sentence. There are a number of grisly assaults that seem to have fallen within this range.

The defence also advocates for a ten-year weapons ban, as opposed to the lifelong ban sought by the Crown. The Defence concludes its case.

The Judge

Justice Rosinski has presided over this hearing with geniality and respect for all the participants, on both sides. As a former Crown attorney, his questions to both Crown and Defence attorneys have been informed and pointed. Throughout the long day, he has struck me as fair-minded and keenly aware of his responsibilities. But I would not seek to read anything into his questions that might reveal his pending judgment. I have no idea how he will rule. As he announced the date for sentencing and brought things to a close, Justice Rosinski made a point of thanking the Mi'kmaw translotor and Elders who had been present to assist Mr. Denny, and represent their community at the hearings. It was an action in accord with his gentle officiation throughout.

Andre Denny

I have written next to nothing about Andre Denny, other than what has been said by others about him. I admit, at first I found it difficult even to look at him. I don't know if that's from fear, or anger. or ... what?

This becomes easier when, before lunch, I was sitting closer to him. I watched his interactions with his lawyers and the Sheriffs who brought him into Court from the holding cells. They all seemed polite and respectful: he to them; they to him. The sheriffs at times got him water when he was thirsty.

Much of the time he sits quite still holding his eagle feather in both hands. I discover I do not hate him. During the victim impact statements, he seems to be paying close attention. Other times he appears not to be following what's going on. I imagine it must be a strange and terrible day for him, but cannot honestly pretend to any idea of how he may be feeling or what he may be thinking.

As the hearing approaches its conclusion. Justice Rosinski asks if Mr. Denny wishes to make a statement. After conferring with his lawyers, Mr. Denny stands. He speaks slowly, but with deliberation.

“I am very remorseful... I am sorry to the Taavel family for what I have caused them, pain and suffering. I apologize deeply.”

Three simple sentences. I realize that this is one of the reasons I came to the Court. This is not something I had anticipated.

For the record, I believed him.

The day is over. I hug Darren. We'll see each other again at the sentencing on March 24. As I leave, Darren is being hauled aside by media, as are the lawyers. I walk down a flight of stairs and exit onto the plaza I walk through the biting North wind to Gottingen Street. to an empty - but - for - the - bartender Menz Bar. I order a pint and raise the glass. To absent friends.

Author's note:The sentencing will take place on Thursday, March 24. Wayves will confirm the date and time ealry next week and post it on our Facebook page. It's my hope that as many members of the LGBTQ Community in and around Halifax as can make it will attend.